Speak Out Act Signed Into Law – Hear How Gretchen Carlson Helps Women Lift Their Voices
In this episode of On Record PR, Gina Rubel goes on record with journalist, female empowerment advocate, author and co-founder of the nonprofit, Lift Our Voices – Gretchen Carlson. Today, we will discuss her instrumental role in advocating for the passage of two monumental bills that give a voice to victims of sexual assault in the workplace.
Before we begin, I want to share some more about Gretchen. She is an internationally recognized advocate for women’s rights whose bold actions against Fox News Chairman Roger Ailes helped pave the way for the global #MeToo movement. A former CBS News and Fox News journalist, author, TED talk alumna, and champion for workplace equality, Gretchen was named one of Time magazine’s “100 Most Influential People in the World,” reported on by Katie Couric.
Gretchen’s story has been told in the movie Bombshell and the Showtime mini-series The Loudest Voice.
Her organization, Lift Our Voices, works to end silencing mechanisms that keep toxic issues like sexual assault and harassment secret. Gretchen is a New York Times bestselling author of “Be Fierce” and “Getting Real.”
There is so much to say about Gretchen. I’d like you to hear from her, as 2022 has been a landmark year because of Gretchen and her fierce allies. I invite you to read more about Gretchen and her work in the show notes on our website.
Today is Dec. 7, 2022, and we have great news to share with our listeners.
Gina, it is great to be with you. This morning, the President of the United States signed our bill into law, the Speak Out Act, which eliminates and eradicates NDAs, non-disclosure agreements, for harassment and assault in the workplace from your first day of employment up until a dispute arises. This basically means that millions of people are going to own their own stories and their own voice and their own experiences with result to harassment and assault at work.
What this means is that companies will no longer be able to silence you with non-disclosure agreements or NDAs that you sign on your first day of work up until you would file a formal legal proceeding.
You will own your own voice for harassment and assault, you will own your own voice from the first day of employment if you had to sign one of these things, all the way up until you would file a formal legal dispute. You’re going to own your story for a really long period of time, at least much longer than you did before this law passed.
We hope that this will be just a step in the right direction to expand upon this federally, but this is the first time that the federal government has said anything about non-disclosure agreements, so it is a huge day that a bipartisan coalition of lawmakers are saying that this should no longer be allowed.
Gina Rubel: I cannot say thank you enough. I want to talk a little bit about some data I want to share with our listeners. One in three women are victims of sexual assault, and according to a report from Good Jobs First, 99%, of Fortune 500 companies have paid out settlements on at least one sexual harassment or discrimination claim since 2000.
Gretchen Carlson: Yes. It’s still here, Gina. I didn’t even realize that it was still a pervasive epidemic when I came forward six and a half years ago at Fox News for harassment, but then I started hearing from thousands of women and I was like, “Holy crap, this is an epidemic. It’s everywhere, it’s in every profession.” Even though we think we’ve come so far for women’s rights, et cetera, we still just have so much more work to do, which is how I decided to roll up my sleeves and get to work.
Gina Rubel: We really do, and you have been at the forefront of this.
What brought you to founding Lift Our Voices?
Right after my lawsuit in July 2016, I started hearing from so many women and that’s when I began to get busy in trying to change the laws on Capitol Hill. I realized that these silencing mechanisms in workplace contracts were really what was holding … it was holding us back from any kind of success in moving the needle to get rid of assault and harassment in the workplace.
I immediately started working on legislation to get rid of what’s called forced arbitration, which we can explain, because most people don’t understand what that is. Then decided to build out a nonprofit a couple of years later to serve as the umbrella organization to put in all the advocacy work I was already doing, but then add in other things like fighting non-disclosure agreements. So as an organization, we’re laser-focused on getting rid of these two silencing mechanisms because we believe that they are the key to equity.
If there’s one thing that we’ve learned since my story six years ago, it’s that through speaking about these issues openly is how we solve them, and so we have to lift these silencing mechanisms so that people are free to share their stories. It’s the only way that we can get better as a society and the only way that we can finally eradicate this horrible behavior that happens at work.
What is forced arbitrations?
Most people have no idea, including myself. At Fox, they put in a forced arbitration clause in my last contract with them. I’m a stickler for detail, so of course, I asked my agent about it and my lawyers about it. At the time of course they had no idea I was thinking about filing a harassment suit, so they just told me, “Don’t worry about it. It’s becoming the way of the world. Everyone uses arbitration now because it’s cheaper and quicker,” and all of these other things. I signed the paperwork because I was already thinking about my harassment lawsuit, but I didn’t know it would have a detrimental impact on that.
Forced arbitration is a secret chamber where issues are worked out like they should be worked out in the courtroom, but you don’t get to go in front of a jury; you go in front of an arbitrator. The problem is that the deck is stacked against you from the beginning, because almost every case the company picks the arbitrator for you, and so of course that arbitrator comes back for repeat business for the company.
This is your only shot, and this is your only complaint, but the company has a lot of complaints potentially. The arbitrator tends to find in favor of the company, it tends to be a retired judge or lawyer, which is not a jury of your peers, because that tends to be an older white man. There are no appeals, there’s no rule of law, so you don’t have to follow law like you do in the court system. There are not the same number of depositions.
The big problem is that it’s secret and also that it protects the predators because nobody knows about these cases. The predator gets to keep on working in a lot of cases, and the woman or the complainant coming forward is the one that’s pushed out. This has exploded in workplace contracts over the last 30 years. For reference, in 1991, only 2% of all workplace contracts had forced arbitration clauses, but by 2024, 84% of us will be bound by forced arbitration clauses unless I continue to do the work to change that.
This was not the intent of arbitration. Arbitration, as you know, was supposed to unclog the court systems with smaller business disputes that didn’t necessarily need to go to court, you could just solve it with an arbitrator and pay a small fee. What happened was that unfortunately companies and smart lawyers figured out how to try and use it to adjudicate human rights violations at work, and that was never the intent.
If people are wondering how all this stuff was kept secret for so long, this is why. It’s because all these cases were going and are going to forced arbitration. When that bipartisan bill passed last February, and it was signed into law with the president on March 3, 2022, that’s a game changer for women in the workplace and men who experience harassment and assault, because now they have a choice. Do they want to go to an open jury process, or do they want to go to arbitration? For me, I would never advocate choosing arbitration for these cases, but at least people now have a choice. It’s the biggest labor law change in the last 100 years.
What is a non-disclosure agreement and why is it important in this scenario in particular?
Unlike arbitration which normally just is in your initial paperwork at the company when you sign on for a job, or if you don’t have a contract, sometimes people agree to it in just an employee handbook, sometimes people click on an email and agree to it. NDAs on the other hand can show up at various different times throughout your work life. They can show up on the first day of employment.
Currently, one-third of all American workers are bound by an NDA on their first day on the job, but most people have no idea that they’ve signed this. They think that they have just signed a non-disclosure agreement so that they can’t go and blab about company secrets to somebody else or to another company. Which I agree, companies should have that right.
But these NDAs, just like arbitration, have become so expansive that people have no clue on the first day of work that they’re signing away their ability to talk about anything that happens to them at work before it’s actually happened. I mean, it’s crazy when I outline it in that way, but millions of people are signing these on the first day of work. Let’s say that hypothetically a year later you are discriminated against or harassed, you cannot tell anyone about that if you’ve signed one of these.
So, the bill we just passed and was signed into law today makes those NDAs null and void for harassment and assault, which is huge. Again, it’s one step in the process, because we believe that you shouldn’t have to be silenced for any form of discrimination as well, but we’re working on this, chipping away at it as much as we can with bipartisan support, and this is as far as we could get for just harassment and assault.
Then NDAs can show up at other times at work. Let’s say that you leave the company and just to get your severance, they make you sign an NDA, just to get your stock options, just to get a letter of recommendation. Of course, NDAs are incredibly prevalent if you have some sort of a resolution or settlement with the company, then for sure they’re going to try and slap you with an NDA.
NDAs, they’re more understood, but they’re a little bit more complicated, because they can show up at many different times over your employment career. Whereas arbitration is pretty much almost always if it’s going to be there, it’s in the beginning when you sign your contract.
Who is most affected by these silencing mechanisms?
It runs the gamut. It’s everywhere. The sad reality, which probably won’t surprise you, is that almost 60% of all women are subject to forced arbitration clauses. Far less than that of men, but around 50 percent. Then the two things that kill me the most are that the highest number of people who are subject to forced arbitration are African American women, and people who make less than $13 an hour.
The way it works in practice is that the more disenfranchised you are in society to begin with, the higher the likelihood that you are also silenced at work. There’s something really wrong with that picture and that’s what we’re fighting at Lift Our Voices.
You got the “Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act” and the “Speak Out Act” passed. What’s next?
These are two of the biggest labor law changes in just a span of eight months in the most hyper-political time of our lives. I always say that passing bipartisan legislation during these times is actually easier than changing the culture.
You ask what’s next? We at Lift Our Voices, always say “fixing these issues is a tangled web, there’s not just a silver bullet solution,” so passing legislation is just one part of what we do. On that front, we are going to be introducing legislation in the state of New York in January to eradicate NDAs for all toxic workplace issues.
Several states have already done this, and they’ve taken the bold progressive move including New Jersey, California, and Washington State, and we really want that to happen in New York state. We’ve seen a massive domino effect from that where some companies, since they can no longer use NDAs at all in those states, have taken it a step further and they said globally they’re not going to use NDAs anymore.
Some of those companies are Microsoft, Apple and Google that decided to do that, because they didn’t want to treat some of their employees differently than others, and we applaud that. That was part of our strategy in doing these progressive state laws as well, and it’s panning out to be true. If we can get New York, that’s a huge employee base with many, many companies based in the state of New York, and we think that it will continue to have that domino effect.
At Lift Our Voices, we are embarking on research that is so desperately needed with regard to these silencing mechanisms. How many people have we pushed out of the workplace because we silenced them? If companies don’t use these silencing mechanisms, do they retain women and people of color at a higher rate? Anecdotally we believe they do, but we want to be able to prove that.
Tell us about your upcoming corporate rating system.
We’re going to embark on putting together the first-ever corporate rating system where we will be able to tell every employee in America whether or not the company they work at uses silencing mechanisms. We think that’s incredibly important information. Then we continue to educate people, because as we started on this podcast, people don’t really know what forced arbitration is and they don’t necessarily totally understand NDAs, and so it’s really important to educate people on these issues.
In 2020, on the Let’s Give a Damn podcast with Nick Laparra, you said that women who have sued their employers and have spoken out have not gone back to their chosen profession. Please share more about that.
That was the most heartbreaking realization for me after my lawsuit was the thousands of women who started reaching out to me was that none of them ever worked again in their chosen profession after they had been silenced through these mechanisms. That was really what propelled me to do this work because I realized that I had a platform to be able to do it, and they had been silenced, but I was given the ability to talk about these issues at least in my settlement agreement. I can’t tell you the details, but they told me I could talk about these issues, and I took full advantage of that. So, I really do all this work on behalf of the people who were left voiceless.
But hypothetically, imagine now if you have been pushed out of your job and you’re forced to sign an NDA as a result and so you can’t talk about what happened to you, and now you try to go get another job. Well, when they ask you why did you leave your VP position at such and such bank? You have to say, “I can’t tell you.” Automatically that makes you look like you’re shady and you did something wrong, right?
I’ll go back to what I said earlier about changing culture is more difficult than passing legislation. It is, because we are so programmed in our society to look down on people who have the courage to come forward and protect predators instead. It’s this unbelievable phenomenon. Even lower-level employees are protected who are treating people badly, it’s not just the moneymakers. It’s like this cultural thing that somehow is ingrained in our society that when people come forward, we immediately think, “Oh my God, we got to get rid of them. We got to push them out and we got to make sure that they’re kept quiet.”
What I say to that now is that era’s over, we’re now moving in this new direction of celebrating people who come forward. This is what I preach to companies every single day. Get on the train now, because it left the station a long time ago and this movement is not going away. I’m relentless. I’m going to continue doing this work in pushing the ball forward, so it would behoove you to join our mission now when it’s a good PR boon for you, and not several years later when I’m forcing you to do it through legislation. So, I do it on behalf of all the women who lost their careers.
By the way, we never think about those women. As a member of the media, I can say it’s the media’s fault that after a man falls down from some sort of allegation, we immediately ask, “when is he coming back?” Instead, we should be saying, when are all these women coming back who’ve been pushed out for doing absolutely nothing wrong?
The name of our podcast is On Record PR, and you used the term PR, and I want to ask you, how has the court of public opinion and how has the media helped you get to where you are today as it relates to the passage of the legislation?
The media is part of the perfect storm that I often talk about in a good way. So, what I believe the perfect storm was and is, and what has kept this movement going is social media. Social media allowed people to come forward either with their name and face or anonymously, and it just exploded when that happened, what we now know as Me Too. But that term was coined long ago, but the latest iteration of it. Then you had the regular media pick up on these stories.
I can tell you, Gina, that six years ago the media was not covering these stories. Nobody gave a damn, nobody cared. If I would’ve pitched a sexual harassment story in my morning meeting, they would’ve been like, “Ho hum.” But the media started covering these stories, and not just the high-profile ones, they started digging into firefighters and members of our military, and minimum wage workers who were affected. I loved that they really started doing this justice by talking about how pervasive these problems were.
Then the third part of the perfect storm is the American public, your listeners. They got mad and they were like, “Wait a minute, I thought we had solved this kind of stuff at work?” They were like, “Why were we not hearing about this?” That brings us full circle to the reason you weren’t hearing about it is because all these cases are going to secrecy through these clauses, through forced arbitration and through NDAs.
The perfect storm of social media, the general media and the American people being mad is what has kept this movement alive. I thank the media for covering these stories, because it has been so impactful to make the movement stay moving along, but also to pay tribute to all these people who’ve been courageous to come forward.
There are so many other types of cases out there that are not employment-related, whether it be religious institutions or organizations that call themselves religious institutions, or kids camps where there have been massive allegations of sexual harassment. Do you think there’s a way that these bills are going to be able to apply to those victims who have signed NDAs as well? And how do we get there?
It’s a great question because silence in America is huge. Unfortunately, America has wonderful qualities, but we’re also the best at silencing our people. We are very concerned about children who’ve been abused at camps or through some church systems and then are forced to sign NDAs along with their family, and they never own their own truth. So, imagine the horrific nature of what has happened to them and then they can’t speak about it ever.
We work in conjunction with organizations that specialize in those areas. We are more specialized in the workplace area, but we are partners with organizations doing the same work. It’s my hope that through the success that we’ve had through our legislation this year, it’s my hope that that will continue to be built upon.
Quite honestly, it’s for sure this last Speak Out Act with NDAs, a lot of the interpretation’s going to be left up to judges in every state as these cases come forward and try to test this new law, and it’s my hope that the judicial analysis will be as broad as possible to be able to include as many survivors as possible. We have to wait and see how this is interpreted, but I do know that it’s just the beginning for us and we’re going to continue to fight for all different kinds of survivors.
This is our third time meeting. The first time I got to hear you speak at the American Lawyer Media WIPL Conference, which blew me away, you had me in tears. The second time, I got to witness you receiving an award from CHILD USA, an organization to which I was introduced by Brian Kent of Laffey, Bucci & Kent, a Philadelphia attorney who represents victims of sexual assault and abuse. Congratulations on that award because it’s exactly what I was trying to get at, in that there are these other organizations out there looking at other audiences. Whereas you’re representing the employees, the people in the workplace, they’re representing children. There are so many others out there, and I just want our listeners to know that no matter what the cause, there are places where they can be helping.
How can listeners help you?
We are a nonprofit at Lift Our Voices, so we need funding to be able to do the work that we’re doing. We’re the only organization in the world doing this work, so we really appreciate if people go to our website, which is liftourvoices.org and contribute whatever you can, every gift is appreciated.
It is sad when you see the numbers about how many philanthropic dollars go to women’s issues globally. It’s only 1.3%, which is just a horrible statistic. We’re trying to change that by raising a bunch of money and continuing to do the good work that we are doing.
Also, just to look at your contract. Look at your own personal contract or your employee handbook or any email you clicked on to see if you have a forced arbitration clause or an NDA in your contract and ask questions about it.
One thing I’m trying to do is educate all of the employees around the country to when they take a new job, ask our questions just like they ask, what’s my vacation time? What are my benefits, right? We want people to also start asking, do you have a forced arbitration clause, and do you silence your workers through NDAs? Normalize these questions so you’re not the only person asking those questions. There’s a lot that people can do to help us push education on this issue.
I want to give a shout-out to Elizabeth Carlock Phillips who also reintroduced me to you. She’s the executive director of the Phillips Foundation, another person doing great things in the world. Do you have any parting thoughts or shout-outs of your own?
There are so many people to thank. I would just say that there were so many organizations that were already doing so much work on these issues, and it was just the perfect pair of those organizations within my story that helped to bring arbitration to light and helped it to get out into the mainstream discussion. So, just hats off to all those groups that were working on this for so long before I even knew what it was.
Thank you, Gina, for putting the word out on your podcast because it’s so important that people understand what their rights are at work. Yes, Elizabeth’s a dear friend of mine, and I always feel like it was fate that we met because she had a personal situation with non-disclosure agreements that affected her family, and she just understood our mission right away.
There are so many people who are rolling up their sleeves every day and doing such great work, so they know who they are, and thank you to them.
Gina Rubel: I feel blessed to be in that group now, having all of this serendipity, even having our podcast scheduled on such an incredible day. I just keep thinking, “Wow, what a story.” I will be here helping to support you as well. I’m so grateful for what you do for all people, and in particular women. Thank you for joining me today, Gretchen.
Where can listeners learn more about you and Lift Our Voices?
They can learn more about me at gretchencarlson.com, and they can learn more about Lift Our Voices at liftourvoices.org. Of course, they can follow along on all social media platforms @GretchenCarlson and @LiftOurVoices.
Gina Rubel: Let’s keep up the fight, keep up the hard work, and continue making a difference in the world. Thank you, Gretchen.
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